from the eloquence-means-nothing-under-the-law dept

Last month, a court totally dismissed the lawsuit filed by Aaron and Christine Boring, who had complained about Google's Street View images of their home, suggesting that the company had driven onto their private driveway to get the photos. The court pointed out, correctly, that the Borings had no case because they could have availed themselves of the simple mechanism on Google to remove the images. Still, the Borings are now appealing, and turning this into quite the epic battle of small guy vs. big company:

"Whether the trespass is by a foreign king, or the royalty of big business, does not matter. The Borings, such as our American forefathers in millennia past, are entitled to proclaim, 'Google, Don't Tread On Me.'"

That seems to be overplaying their hand just a bit. As is the claim that the original ruling made them "Google slaves":

"This Court tells Google that it is okay to enter onto a person's private property without permission. I would not teach that rule to my child. This Court's ruling makes our private property a Google Slave; our property is no longer our own: it is forced to work for another, against its will, without compensation, for the profit of another. The Federal Court should free slavery, not create it."

It's not like Google took over their property or anything. The Google Maps car looks like it pulled into, and backed out of their driveway -- which it may have confused as another road. It did no damage, and the end result -- the photo -- could have been easily removed by the family. This is hardly a case of a massive trampling of anyone's rights.

Re: the greater good

I think Google's handling of this was wrong from the very beginning. A representative from Google should have personally apologized for the trespass said that processes were being developed to ensure that such trespasses would not occur in the future, and then he'd say that Google was "taking the issue of trespass very seriously."

Then, after receiving the genuine apology from Google, the Borings should have accepted it and moved on with their lives. Because, let's face it. They suffered no damages from the trespass.

Re:

The reason why Google should not have made an apology is simple: they didn't make a mistake.

The road they drove down was marked on maps as being a public road, and there were no signs posted to inform their driver that it was private property. This can be seen on the photos taken by Google Street View (which, as per the Streisand Effect, will now always be available online on news sites due to the lawsuit).

Therefore, it was the aptly-named Borings who made the mistake - if you don't want people to drive onto private property, inform them that it's private property! Google already took the relevant action - as soon as they were informed of the error, they removed the offending material. No harm, no foul. Until the lawsuit happened, it was a simple misunderstanding.

I highly doubt that an apology would have been sufficient, especially since no harm was caused *until* the Borings filed the lawsuit. Quite simply, this is a pair of idiots who have decided that Google should pay them a large cash settlement for a simple misunderstanding they were largely responsible for, and won't take no for an answer.

Re: Re:

"The reason why Google should not have made an apology is simple: they didn't make a mistake."

Let's say you're walking in a store and accidentally bump into a little old lady, knocking her down. Do you say, "I'm sorry, I didn't see you? Let me help you up." Or do you say, "Get out of my way bitch!"

Of course you apologize, even when it's not your fault. An apology is not necessarily an admission of wrong doing, it's an acknowledgment and an expression of sympathy that someone else was harmed do to even your unintentional actions.

"I highly doubt that an apology would have been sufficient"

I think you're right. The Borings sound crazy. But at the very least the Borings' refusal to accept the apology would make them look even more ridiculous. Which would make Google's position even stronger.

Re: Re: Re:

Erm, yeah, of course you apologise. But there's different kinds of apologies. Funny thing is, we don't know exactly what Google have said.

If there's an email confirming that the images were removed, with a line at the bottom saying "apologies for any inconvenience", that's an apology and sufficient for the situation.

What you seemed to be talking about is some kind of high-level executive taking the time to contact the couple personally. I don't think this was necessary in this case. To address your rather overwrought example, that would be like having to write a letter of apology to the old woman rather than simply saying "sorry" - complete overkill and totally unnecessary.

Re: Re: Re:

Your analogy is terrible. Its still your fault that you bumped into a little old lady due to you not paying attention. If you were walking along in a store and she jumps out from behind a stand and rams into you, do you still say you're sorry for the collision? Hell no.

They got it wrong

Goggle didn't deprive them of their property. If the Google car had damaged their property or taken something from them then I might see their point of view but that just didn't happen. In this case they still have full and complete ownership of their property.

Also, photons can't comprehend signs. Would they be mad if the Google car raised a boom mast and took a picture of their precious property? What if a Google plane had done the same? Or Google Earth?

Plus, sheesh, they sound like they are after a pay day. I am not a lawyer, but I can spot a wanker when I see one.

Re: They got it wrong

Trespass is a strict liability offense. It doesn't require any damage. Anyone who invades your property without permission is a trespasser. The fact that Google provides an easy removal tool for the photos does not change the fact that it trespassed, it just provides people with an optional non-litigious solution.

Re: Re: They got it wrong

Re: Re: They got it wrong

Do you even know what that means? It means that, even if one trespasses by accident, they are LIABLE for any damages. But, and here's the important part, there were NO damages.

Courts don't like you crying to them to solve your petty disputes anymore than your mother does. If there was any "damage," it was the presence of the photo. The only "litigious solution" the court can offer (other than to pay damages, which were nil) would be to issue an injunction requiring google to take down the photo. But google will do that without the court's involvement. Therefore, the court is--rightly so--telling Boring to take a hike.

Re: Re: Re: They got it wrong

Since the Borings are the plaintiffs in this case, they are necessarily alleging civil trespass, not criminal trespass (which must be brought by the state prosecutor's office). see my point above- the proper damage award in a civil trespass case like this would be $1 and an injunction (which as you rightly point out, is unnecessary here since Google will take down the photo anyway).

Re: They got it wrong

"Goggle didn't deprive them of their property"

While I agree with your point, trespass does not mean deprivation of privacy. Google's agent trespassed, no one doubts that. As I previously said, Google should have apologized for that. Either it would have calmed the Borings down, or if not, it would have given us yet another reason to deride the Borings.

Re: Re: They got it wrong

Here's where I have a problem - on one side, you are all upset because BT pushed an update out to user's wireless without permission, and on the other side, you have no problem with Google putting people in a position of having to opt-out their private property.

Google Street view in this case violated these people's privacy. If a celeb lived in this house an a paparazzi showed up and took pictures from this location, those images would be blocked by the courts and the news organization sued. Why is Google suddenly different?

Google needs to adopt the "do no evil" on this one: If you cannot prove that you are on a public street, don't use the images taken by the camera car. Nothing more, nothing less. The community / county would very easily be able to tell them which roads are incorporated and which roads are not. Google is just being extremely lazy, using the quickest route to get stuff online without considering the implications.

Oh, JustMe, if they put the camera on a boom mast and took pictures, Google would likely get sued into the ground. That would show a very, very clear intent to violate privacy, by attempting to shoot images over fences or trees in order to gain a view that the general public would never have. Google Earth will reach the same problem when the resolution gets to the point that too much information is shown. Their new sat puts them very close to having this problem.

Re:

"Here's where I have a problem - on one side, you are all upset because BT pushed an update out to user's wireless without permission, and on the other side, you have no problem with Google putting people in a position of having to opt-out their private property."

No problem. The first is a case where BT tried using a person's own property to provide a service they may not be willing to provide, while potentially opening them up to legal liability if a person decided to use their equipment to download, say, child porn or pirated movies. Not to mention potential security risks for the companies themselves.

On the other hand, you have Google taking an image of a view that anybody driving down a particular street (which was not clearly marked as private property) could see at any time. As I understand the case, this road *was* still marked as publicly accessible on the maps Google were working from. The image did not show anything "private" other than the outside of the house, and was removed as soon as Google were informed of the error. The couple lost nothing until they decided to start suing.

Re:

People are unaware of whats going on. The road was labeled as a public road on maps. There were no signs to make people think otherwise. If its impossible to tell its a private road AND its on a map as a public road, how can you possibly charge someone for trespassing. It has to be clearly your property to charge someone for trespass. If it looks like public property, is listed on maps as public property, how the hell can you really blame somebody for traveling on it?

Re: Re:

you actually don't need to show that the property is clearly private to charge trespass in a civil court. in order to charge google with criminal trespass, that would be true. However, civil trespass and suits seeking monetary damages don't require knowledge by the trespasser that the property was private, only that the property was private in fact.
However, since the Borings can't prove any physical damage beyond the act of trespass itself, the Court would likely award nominal damages (most likely $1) in recognition of the fact that a trespass occurred

Re: Re:

People are unaware of whats going on. The road was labeled as a public road on maps.

Probably Google maps, right? You can put anything on a map. Just because you do, that doesn't automatically make it so.

There were no signs to make people think otherwise.

According to their lawsuit filed with the court, there was indeed a "Private Road" sign. I think filing a false document with the court might be a criminal offense and I haven't read of the Borings being charges with such.

So, it's ok to trespass on private property, take photos, and publish them just so long as you provide your own bureaucratic mechanism to remove the photos? Mike just had a post about how slow Google is respond to inquiries.

I've never used their tool to remove photos from street view, but knowing their reputation, should I just use that tool and then pray?

The Borings are definitely going down the wrong path. They're overstepping so they can make a point, and that's backfiring against them (not even to mention the Streisand Effect). But the idea that it's ok to break the law as long as you provide an automated "I'm sorry" system is a wee bit absurd.

Google should be punished, or the employee should be punished, but I don't really think the Borings deserve much of a civil award.

Re:

Slippery slope argument you have there...

Here's the issue: like everything Google does, be it indexing websites, hosting videos or satellite photos, the Street View service is basically impossible to provide if Google need permissions from all property owners involved. Therefore, it needs to operate on the assumption that anything listed as public is indeed public.

That's what happened in this case. Google have broken no law - if they had, the court would have found in their favour. They worked from publicly available maps that listed the road as public. If anything happened here, it was a simple misunderstanding.

Why should someone be punished, and why to you feel that the Borings should be awarded for not bothering to put up a "private property" to avoid accidental trespassing?

Re: Re:

the Street View service is basically impossible to provide if Google need permissions from all property owners involved. Therefore, it needs to operate on the assumption that anything listed as public is indeed public.

I'm sorry, but that's a crazy argument. Unless a service is mandated by legislation, then that service has no inherint right to exist.

If they needed everyone's permission (not saying they do, just following your argument) to offer the service, and they could not get the permission, whether it is impracticle or permission is just plain refused, then they can not operate that service.

Just because it is impracticle to get permission does not automatically make that permission implicitly granted.

Say I started a business where I went around to everyone's house and picked up their lawn clippings so I could sell them for compost. Just beacuse it is impracticle to get everyone's permission does not mean I am not stealing that compost.

Here, when a cable company wanted access to powerlines for their cable rollout (in some suburbs here the powerlines are at the back of properties, on the fenceline between 2 back-to-back properties), they had to send a letter to every household in the area to inform them that they required access to their property to rollout the cable.

If utility companies (hell, even political parties at election times do it) can send out a letter to every single household in a city, why can't Google?

Re: Re: Re:

The utility companies don't require a reply from every householder, nor is their service deemed unusable if a few people don't respond.

Please, can someone explain to me what the problem is here. Google drive around PUBLIC streets taking photos of PUBLIC views. the same view that are visible to everyone who drives down that road every day. To my mind, that implies prior consent. If Google are recording something, it's in the PUBLIC view, therefore no expectation of privacy is reasonable.

This lawsuit is an isolated case, caused more by poor indication of the road's private status than on any deliberate violation on Google's part. This has nothing to do with people coming into your homes, recording your conversation or attacking your lawn. Nobody loses anything, and the return is a free, invaluable service.

What, exactly is the problem with this? No stupid analogies or "what if they start doing THIS...." idiocy. Just explain to me what the problem is with Google making a visual record of how a street looks today, based on what's clearly in the public view of anyone driving down the same road.

Re: Re: Re:

Christ, the reason the utilities need permission is because they're *digging up the property*! If they were taking a photo, they wouldn't need permission. Same with lawn clippings they'd be walking onto your property and taking some of it, of course they'd need permission. They wouldn't if they stood outside and took a photo of the lawn from the public street. Why are all these apologies so utterly idiotic?

Please, can someone explain to me what the problem is here. Google drive around PUBLIC streets taking photos of PUBLIC views. the same view that are visible to everyone who drives down that road every day. To my mind, that implies prior consent. If Google are recording something, it's in the PUBLIC view, therefore no expectation of privacy is reasonable.

This lawsuit is an isolated case, caused more by poor indication of the road's private status than on any deliberate violation on Google's part. This has nothing to do with people coming into your homes, recording your conversation or attacking your lawn. Nobody loses anything, and the return is a free, invaluable service.

What, exactly is the problem with this? No stupid analogies or "what if they start doing THIS...." idiocy. Just explain to me what the problem is with Google making a visual record of how a street looks today, based on what's clearly in the public view of anyone driving down the same road.

Re: Re: Re: Re:

Reading comprehension Please. I was responding to YOUR argument:

the Street View service is basically impossible to provide if Google need permissions from all property owners involved. Therefore, it needs to operate on the assumption that anything listed as public is indeed public.

It does not need to operate on the assumption that everything listed as public is indeed public.

Your argument implies that if someone, anyone, wants to offer a service, any service, and if it is too much "trouble" to get the required permissions, then blanket permission must be and can be assumed.

That is plain wrong. If (notice the emphasis, if if if) permission is needed, then permission is needed. If permission can't be reasonably obtained, then the service cannot (legally) be offered.

What google is doing with streetview, assuming they stay on public property, does not seem to require permission. Therefore they can offer the service. But that was not what your argument stated.

Massive Storage Needs?

After looking at the pictures... it seems to me there is more garage then house. I count 5 single door and one double door garage. The house is only 1,224 sq ft! I wonder what they have in the garages?

Word play

Let's try a little search and replace. Are there two standards?

"It's not like FBI took over their property or anything. The FBI Maps car looks like it pulled into, and backed out of their driveway -- which it may have confused as another road. It did no damage, and the end result -- the photo -- could have been easily removed by the family. This is hardly a case of a massive trampling of anyone's rights."

I agree with most posters here, the couple involved are flaming nitwits, however how much do we have to opt out of? If our WiFi traffic is accidentally harvested, if audio recordings accidentally include what we say in our house, if someone accidentally videos all the mail as the mailman puts it in our mailbox (all in the name of providing information of course) do we have to opt out of those as well?

I despise opt-out anything because that sort of policy declares any use/abuse of my time as inherently free/without cost. So it'd be up to me to spend all my time trying to find out what sort of use/abuse of any personal information about me, my home, my business, or my family is being put to.

If google had cameras pointed at hospitals around the country to count the number of pregnant women entering and children exiting, would that be acceptable? What if they did the same thing at a drug treatment clinic? Should pregnant mothers be responsible for discovering that their images are on the internet and be required to opt-out of every website that creates or posts the content?

A blanket policy of "anyone can harvest everything unless someone complains" is as fruit-loopy as the Boring's court exaggerations. There must be some sort of workable middle ground somewhere.

Re: Word play

OK, I think everyone here agrees that 'opt-out' systems are annoying at best (are any of you old enough to remember the old mail order music clubs - send it back if you don't want to buy it?).

But it's a valid point that if the drive was marked as private, and/or if there was a 'no trespass' sign on the property the judge would not have simply dismissed the case.

The complaint, shown at the thesmokinggun web site (http://www.thesmokinggun.com/archive/years/2008/0404081google1.html), claims that there was a private drive posting, but it seems like the judge either disagreed that "...there is a clearly marked "Private Road" sign" or is sick of 'sue for fun and profit' lawsuits.

The driver seems to have gone pretty far onto the property based on the pictures at thesmokinggun.com. Just from the pictures I would think the driver should have known he was on private property and marked it as private so the pictures wouldn't have been published, but I haven't read testimony from the driver, so I don't know what he knew or didn't know.

If this is anything other than a grab for money, based on the law suit complaint that the pictures showed the swimming pool, I would guess that the Borings (I still can't get over that name - lol) are upset that the tax assessor now knows that they have a swimming pool, which isn't listed on the county assessor's property card. I think that means that it was built without getting a permit and without having it inspected. So much for tax fraud.

"I agree with most posters here, the couple involved are flaming nitwits, however how much do we have to opt out of?"

Whatever's reasonable. It's reasonable to be required to opt out of Street View, as the useful service it provides would be impossible to provide if it were an opt-in service. Everything else should be taken as it comes, but the examples you give are utterly ridiculous.

"If our WiFi traffic is accidentally harvested,"

It already is. If you don't encrypt your traffic, anyone within receiving distance can run a packet sniffer and look at the contents. If your next-door neighbour runs such a program while diagnosing his own network and accidentally captures your network traffic (while it's travelling throgh his property, else he's physically trespassing anyway), then he's had access to your network data.

It's down to you to "opt-out" by either encrypting your traffic or placing your router in a place where nobody outside your property can access it.

"if audio recordings accidentally include what we say in our house"

It depends on what the circumstances are. There would have to be a very good reason for this to be captured for it not to fall foul of anti-bugging laws, and I can't think of any situation where capturing audio (a completely transient quality) would be useful in the same way as capturing physical geography.

"if someone accidentally videos all the mail as the mailman puts it in our mailbox"

Again, what possible purpose could there be for capturing such information. Maybe a video version of Street View, but it's unlikely that such a thing would violate your privacy, and it would also be covered by the same arguments made about Street View now - if it's happening in public, it ain't private. Your mailbox is in public view of the street, therefore unless the information given is far greater than a passer-by would see, it's not a privacy violation.

"If google had cameras pointed at hospitals around the country to count the number of pregnant women entering and children exiting, would that be acceptable? What if they did the same thing at a drug treatment clinic? Should pregnant mothers be responsible for discovering that their images are on the internet and be required to opt-out of every website that creates or posts the content?"

What utterly ridiculous arguments. Hospitals are privately run buildings. To provide such images, Google would need permission from the hospital and would need to provide a damn good reason for wanting to make such images public. In any case, your issue would be with the hospital who allowed such images to be made public, not with the service provider (Google). Any hospital would be able to opt-out, and they would need to have authorised Google's cameras in the first place (what you're talking about is a permanent installation, not a literal drive-by as with Street View). In any case, cameras are already installed in hospitals, it's just that they haven't decided to make such images public.

:)

The real question is, could the owner executed a citizens arrest and successfully pressed trespassing charges against Google? I am guessing the answer is yes. If that is the case the question of damages is moot but the trespassing charge is valid. It is Google's responsibility to know if they are on public property or not and if they are wrong they assume liability. After all you could get shot in Texas for this.

They deserve nothing

There was no harm done, and the offending photo was taken down. They aren't bothering to file suit against the county, which also has a published photo of the property. The judge should award them their $1, which is all they deserve. Yes, it was trespass, but civil, not criminal.

Honestly, I think the judge got it right, and hopefully the appeals court will hand the Borings their asses on a platter, and then send them on their way. This is just about two losers looking for an easy payday, where none is deserved.

The funniest part of this whole thing? "This Court's ruling makes our private property a Google Slave; our property is no longer our own: it is forced to work for another, against its will, without compensation, for the profit of another. The Federal Court should free slavery, not create it."

Since the plaintiff is alleging that the property itself was somehow emotionally harmed, I think the plaintiffs should be required to put it on the stand, so that it can testify as to its state of mind, and explain how it feels about being so egregiously exploited.

I say we free the Borings land..after all since it apparently has free will, it should have to CONSENT (verbally or in a letter) to having a house just PLONKED on top of it...and being walked on by the borings all day is cruel and unusual punishment.

I also think its worth checking if the land is a registered US citizen and has a social security number....if not it should be hauled off to guantanamo bay for questioning as to what the HELL it thinks its doing on US territory...